Note on the Legal History of Navassa Island

by David P. Billington, Jr.

As a guano island, Navassa entered the territorial domain of the United States under contingent circumstances, and it is currently the only public land administered by the Interior Department that is also claimed by a foreign nation (Haiti). The following note outlines the legal history of the island and the U.S. claim.

1.

Navassa is a two-square mile U.S. territory located in the Caribbean Sea, about seventy miles northeast of Jamaica and thirty miles west of Haiti (18 deg. 24 min. N, 75 deg. 01 min. W). The United States claimed Navassa Island under the Guano Islands Act of August 18, 1856. The Guano Act is currently embodied in federal statutes as U.S. Code, Title 48, Chapter 8, Sections 1411-1419. Section 1411 provides that:

Whenever any citizen of the United States discovers a deposit of
guano on any island, rock, or key, not within the lawful jurisdiction
of any other Government, and not occupied by the citizens of any
other Government, and takes peaceable possession thereof, and
occupies the same, such island, rock, or key may, at the discretion
of the President, be considered as appertaining to the United States.

In a letter to the U.S. Department of State dated November 18, 1857, an American sea captain, Peter Duncan, claimed Navassa for the United States under the Guano Act. A reply of the Secretary of State to Duncan in the archives of the State Department dated December 8, 1859, recognized Navassa as appertaining to the United States.

Guano deposits are dried bird droppings, which may be used for fertilizer. The purpose of the Act was to protect American discoverers from foreign interference after the discovery of guano. The other sections of the Act describe how to claim discoverer's rights to the guano, various conditions, and U.S. responsibilities. These are described with commentary in John Bassett Moore, A Digest of International Law (Government Printing Office, 1906), Vol. 1, pp. 556-580.

Duncan transferred his rights to his employer, Edward Cooper, an American operating out of Jamaica, who sold them to the Navassa Phosphate Company of Baltimore, Maryland. This company mined Navassa with African-American laborers until abusive conditions provoked a race riot in 1889. The Company resumed mining at a reduced level afterwards until the Spanish-American War of 1898, after which the Company went bankrupt. New owners abandoned the island c. 1901.

On January 17, 1916, to aid navigation to and from the Panama Canal, President Wilson issued a Proclamation that reasserted U.S. sovereignty and reserved the territory for lighthouse purposes. The Coast Guard administered the island after it absorbed the U.S. Lighthouse Service in 1939. The island had an automatic beacon installed in 1929, which was serviced twice yearly by the Coast Guard until the removal of Coast Guard equipment in August 1996.

Under U.S. Code, Title 43, Section 1458, the Secretary of the Interior takes charge of federal land not assigned to any other agency or department. By Secretary's Order No. 3205 of January 16, 1997, the Secretary placed Navassa under the U.S. Department of the Interior's Office of Insular Affairs. By Secretary's Order No. 3210 of December 3, 1999, the island became a National Wildlife Refuge Overlay under the management of the U.S. Fish and Wildlife Service.

2.

The abandonment of the island after 1898 placed Navassa in an uncertain position. The Guano Act did not specify whether United States sovereignty survived the abandonment of an original guano claim. Section 1419 of the Act states:

Nothing in this chapter shall be construed as obliging the United
States to retain possession of the islands, rocks, or keys after the
guano shall have been removed from the same.

Normally, when U.S. territory has been annexed, the annexation is permanent unless and until changed by treaty. But the Guano Act expressed the intent of Congress to treat guano islands differently from ordinary public land.

The Act did not oblige the United States to relinquish such islands, nor did it expressly terminate sovereignty upon abandonment of a guano claim, but neither did it specify the status an abandoned island.

In Grafflin vs. Navassa Phosphate Company, 35 Fed. Rep. 474 (1888), the U.S. Circuit Court for the District of Maryland observed:

Looking to the language and purpose of the [Guano Islands] Act...
we find nothing which indicates that it was the intention of
Congress to claim title to or recognize in the discoverer...any
title to the land; on the contrary, the provisions of the law
entirely negative any idea that such islands were in any sense
to become part of the territorial domain of the United States.

The Circuit Court made the above observation in addressing a petition that later went to the Supreme Court as Duncan vs. Navassa Phosphate Company, 137 U.S. 647 (1890), in which the discoverer's widow, Isabella Duncan, tried to claim Navassa as a dower. But in arguing against the petition in both cases, the courts denied that Navassa was a permanent part of the United States.

In Jones vs. United States, 137 U.S. 202 (1890), the Supreme Court affirmed that the United States had jurisdiction in three criminal cases that arose from the events on the island in 1889. In its decision, the court invoked the longstanding principle that whenever the citizens of a power

take and hold actual, continuous, and useful possession...
of territory unoccupied by any other government...the
nation to which they belong may exercise such jurisdiction
and for such period as it sees fit over territory so acquired.

But the above language and the principle invoked by the court implied United States jurisdiction only while U.S. citizens were resident and working on the territory. The intention of the court, expressed on page 222, was simply to uphold U.S. jurisdiction while a guano claim was in force, not to assert such jurisdiction indefinitely.

In Jones vs. United States, the Supreme Court held that the boundaries of the United States were for the executive and legislative branches of the federal government, not the courts, to determine. The U.S. Department of State argued that the United States retained jurisdiction over Navassa following the Phosphate Company's withdrawal. See Assistant Secretary of State Moore to Mr. Fowler, 9 July 1898, 230 Ms. Dom. Let. 107, and 2nd Assistant Secretary of State Adee to Messrs. Musgrave, 3 August 1900, 246 Ms. Dom. Let. 682, in the Archives of the State Department.

The Supreme Court also noted in Jones vs. United States, page 224, that violations by the Navassa Phosphate Company of the bond given to the State Department as a condition of its private claim did not thereby forfeit public U.S. sovereignty. An Opinion of the Attorney-General, in 34 Op. Atty. Gen. 507 (1925), extended this ruling on page 514 to affirm the continuing jurisdiction of the United States following the abandonment of a guano island by private parties.

An Act of Congress on October 22, 1913 (38 U.S. Statutes at Large 224) appropriated funds to erect a lighthouse on Navassa. To implement this Act, President Woodrow Wilson proclaimed the island a U.S. territory on January 17, 1916, and reserved it for lighthouse purposes.

The 1916 Proclamation is now obsolete, since the island no longer serves as an aid to navigation. The 1925 Opinion of the Attorney-General still affirms U.S. sovereignty over Navassa and may now take precedence as the basis for the U.S. claim to the island. But the status of Navassa is currently in dispute.

3.

New owners of the Navassa Phosphate Company went to New York state court in 1901 to resolve a dispute over the rights to mine Navassa. I do not know the outcome, in which one party was presumably awarded the rights. The rights were not exercised in the years before 1913, however, and the Act of Congress in 1913 implicitly revoked them. The Navassa Phosphate Company was dissolved by Proclamation of the Governor of New York in April 1924.

The United States claim to sovereignty over Navassa is disputed by the Republic of Haiti, which protested the U.S. annexation in 1859. Haiti did not mention the island by name in its territorial claims before then, but its early constitutions claimed all adjacent islands.

The United States has never formally recognized that a dispute exists with Haiti over Navassa, as it recognized a dispute with Honduras to exist over the Swan Islands when the Swans were a U.S. possession. The United States formally ceded the Swan Islands to Honduras in 1972. There is no constitutional barrier to the cession of Navassa to Haiti at some point in the future, though, and it is historically doubtful that a dispute of this kind will be allowed to continue indefinitely.